Karnataka High Court
Sumitra W/O Bhimanagouda Patil, vs Siddavva W/O Mahadevappa Agadi, on 8 January, 2021
Author: B.A.Patil And Ravi.V.Hosmani
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08 T H DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
R.F.A.NO.100054/2015 (PAR & POS)
BETWEEN
1. SUMITRA W/O BHIMANAGOUDA PATIL,
AGED ABOUT: 64 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANKOPPA, GOUDAR ONI,
HUBLI, DIST: DHARWAD-580 001
2. HANAMANTAGOUDA BHIMANAGOUDA PATIL,
AGED ABOUT: 40 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: GOPANKOPPA,
GOUDAR ONI, HUBLI,
DIST: DHARWAD, 580 001
3. KALLANAGOUDA BHIMANAGOUDA PATIL,
AGED ABOUT: 38 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: GOPANKOPPA,
GOUDAR ONI, HUBLI,
DIST: DHARWAD-580 001
4. SUSHILA W/O BASAVARAJ HARALIKOPPI,
2
AGE ABOUT: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: DUNDASHI, TQ: SHIGGAON,
DIST: HAVERI-580 002
5. SUJATA W/O KARABASAPPA MALLIGWAD,
AGE ABOUT: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: GAMANAGATTI,
TQ: HUBLI, DIST: DHARWAD-580 001
....APPELLANTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND
1. SIDDAVVA
W/O MAHADEVAPPA AGADI,
AGED ABOUT: 63 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GOPANKOPPA, HUGAR ONI,
NEAR BHEEMANAGOUDA FLOUR MILL,
HUBLI, DIST: DHARWAD.
PIN 580 001
2. PARVATEVVA
W/O BHARMAGOUDA HALEMANI,
AGED ABOUT: 71 YEARS,
OCC: AGRICULTURE,
R/O: SHANAWAD,
TQ: NAVALGUND,
DIST: DHARWAD.
PIN 580 001
3. SEETAVVA
W/O MALLAPPA DHARWAD,
AGED ABOUT: 67 YEARS,
OCC: AGRICULTURE,
3
R/O: GAMANGATTI,
TQ: HUBLI, DIST: DHARWAD.
PIN 580 001
4. MANKAVVA
W/O TIRAKAPPA ULAVANNAVAR,
AGED ABOUT: 65 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KARADAGI,TQ: SAVANUR,
DIST: HAVERI. PIN 580 002
5. FAKKEERAWWA
W/O NEELAKANTHAPPA KARJAGI,
AGED ABOUT: 59 YEARS,
OCC: HOUSE MANAGEMENT,
R/O: BENAKANAHALLI,
TQ: KUNDGOL, DIST: DHARWAD.
PIN 580 001
6. SAWAKKA
W/O LAXMAN CHOUDAL,
AGED ABOUT: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GUDAGERI, TQ: KUNDGOL,
DIST: DHARWAD-580 001
7. NEELAWWA
W/O IRAPPA NEERALAKATTI,
AGED ABOUT: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HANGARAKI,
TQ: DHARWAD, DIST: DHARWAD-580 001
8. IRANNA TAMMANNA MALLIGAWAD,
AGED ABOUT: 42 YEARS,
OCC: ELECTRICAL,
R/O: GAMANGATTI, TQ: HUBLI,
DIST: DHARWAD-580 001
4
9. KARABASAPPA TAMMANNA MALLIGAWAD,
AGED ABOUT: 40 YEARS,
OCC: ELECTRICAL, R/O: GAMANGATTI,
TQ: HUBLI, DIST: DHARWAD, PIN 580 001
10. BASAVARAJ TAMMANNA MALLIGAWAD,
AGED ABOUT: 36 YEARS,
OCC: PVT., SERVICE,
R/O: GAMANGATTI, TQ: HUBLI,
DIST: DHARWAD. PIN 580 001
11. MANJUNATH TAMMANNA MALLIGAWAD,
AGED ABOUT: 36 YEARS,
OCC: PVT., SERVICE,
R/O: GAMANGATTI, TQ: HUBLI,
DIST: DHARWAD. PIN 580 001
...RESPONDENTS
(BY SRI. DINESH M KULKARNI, ADVOCATE FOR R1;
SRI R.R.NADAGER, ADVOCATE FOR R2 AND R4;
SRI UMESH P.HAKKARKI, ADVOCATE FOR R8 TO R11;
NOTICE TO R3, R5 AND R7 SERVED, UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 R/W SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 21.01.2015 PASSED IN
O.S.NO.317/2011 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, HUBBALLI, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA BEING RESERVED FOR JUDGMENT ON
15.12.2020, THIS DAY, RAVI V.HOSMANI, J., DELIVERED
THE FOLLOWING:
5
JUDGMENT
This appeal is preferred by defendant Nos. 1 to 5
challenging judgment and decree dated 21/01/2015
passed by I Additional Senior Civil Judge, Hubballi in
O.S.No.317/2011.
2. For the sake of convenience, parties are
referred to as per their ranking before Trial Court.
3. The facts in brief leading to this appeal are
that, one Sri. Manakanagouda Patil, was propositus of
family. He died intestate, on 08.04.1991, leaving behind
him one son namely Bhimanagouda and eight daughters
namely - Parvatavva, Seetavva, Manakavva, Siddavva,
Kallavva, Fakkiravva, Savakka and Neelavva. Smt.
Siddavva D/o. Manakanagouda is the plaintiff. Her brother
- Bhimanagouda Patil died intestate, on 08.02.2002,
leaving behind him his wife Sumitra (defendant No.1), two
sons, Hanumanthgouda (defendant No.2), Kallanagouda
(defendant No.3) and two daughters Susheela (defendant
No.4) and Sujata (defendant No.5). One of plaintiff's
sisters - Smt. Kallawwa died on 29.10.2011, leaving
behind four sons namely, Iranna (defendant No.12),
Karabasappa (defendant No.13), Basavaraj (defendant
No.14) and Manjunath (defendant No.15). These persons
constituted Hindu Joint Family which owned joint family
properties.
The suit schedule properties were joint family
properties of the propositus. Defendants No.1 to 5 sold
plot No.2, 12, 28, 66 and 75 in R.S.182/B of
Gopanakoppa. Plaintiff and defendants purchased schedule
'B' property in the name of defendant Nos.2 and 3. There
was no partition between parties. The plaintiff got 1/9 t h
share in joint family properties and she was in joint
possession. After she demanded her share, there was
refusal. Hence, she filed suit against defendants.
In response to suit summons, defendants entered
their appearance. Defendant No.2 filed written statement
denying suit schedule properties were joint family
properties and there was no prior partition between
plaintiff, late Bhimanagouda, Kallavva and defendant Nos.
6 to 12. In para -5, it was specifically stated that the
plaintiff while compromising the suit bearing
O.S.No.209/2000 clearly admitted through a memo that
she has no right, title, interest in any of the properties
belonging to undivided family and therefore the present
suit was abuse of process of Court. The said written
statement was adopted by defendant No.1, 3 to 5. They
sought for dismissal of suit.
4. Based on the pleadings, trial court framed
following issues for its consideration:
1. Whether the plaintiffs prove that the
suit properties are her joint family
properties and she is in joint
possession and enjoyment of the
same as averred?
2. Whether the plaintiff is entitled to any
share in the suit properties and if so,
what is her share?
prove that this suit is not
maintainable in view of compromise
decree passed in O.S.No.209/2000 on
the file of Principal Senior Civil Judge,
Court Hubli?
4. Whether the plaintiff is entitled to any
relief as sought for in the suit?
5. What order or decree?
5. In support of their case, plaintiff examined
herself as P.W.1. Exhibits P.1 to P.21 were marked. On
behalf of defendants, defendant No.1 was examined as
DW-1 and three other witnesses as DW-2 to DW-4
respectively. Exs. D.1 to D.12 were got marked.
6. On appreciation of oral and documentary
evidence, trial Court answered issues Nos.1, 2 and 4 in
the affirmative, issue No.3 in the negative and decreed
the suit. Plaintiff was held entitled to 1/9 t h share in suit
schedule properties. Aggrieved by the same, defendant
Nos. 1 to 5 are in appeal before this Court.
7. Learned counsel Shri. Mallikarjunswamy B.
Hiremath for appellants-defendants submitted that trial
Court committed grave error in decreeing the suit, though
the suit was hit by Order II Rule 2 of Code of Civil
Procedure, 1908 (hereinafter referred to as 'CPC' for
short) which fact was established by producing plaint filed
in earlier suit namely O.S.No.209/2000 as per Exs. D.2 to
D.4. It was submitted that the finding given by the trial
Court on issue No.3 was perverse and call for
interference. While deciding issue No.3, the trial court
held that the admission of the plaintiff that the suit
schedule properties in the present suit were not the
subject matter of the prior suit and further admission that
plaintiff had not executed any registered documents for
relinquishing her right over suit schedule properties, was
sufficient to come to the conclusion that the defendant
failed to prove that suit was not maintainable. The bar
under Order II Rule 2 was not at all considered in its
perspective.
8. Learned counsel submitted that plaintiff in this
case namely, Siddavva Mahadevappa Agadi was plaintiff
No.5 in earlier suit O.S.No.209/2000. In the said suit, it
was stated that one Hanumanthgouda was common
ancestor of plaintiff and defendants. He had four sons,
Channabasanagouda, Fakkirgouda, Manakanagouda and
Kallanagouda. Channabasanagouda died on 03.05.1985.
He had two sons, Hanumanthagouda and
Mallikarjunagouda. Prior to death on 06.04.1988
Fakkirgouda adopted Mallikarjungouda. Kallanagouda died
on 19.10.1993, leaving behind his wife Dyamavva and two
sons Ujjanagouda and Dharamagouda. The other son
Manakanagouda died on 08.04.1991 leaving behind him
one son - Bhimanagouda and eight daughters. These
persons constituted joint family owning agricultural lands
namely Sy. No. 177/2, 177/4 and 177/5 measuring 1 Acre
39 Guntas, 6 Acres 4 Guntas and 3 Acres 17 Guntas
respectively, which were joint family properties, cultivated
by all four sons of Hanumanthgouda, jointly. On coming
into force Land Reforms Amendment Act, all four brothers
filed form No.7 to avoid technical defects. They were
granted occupancy rights for and on behalf of joint family.
Therefore, each branch got 1/4 t h share in suit properties.
It was also stated that there were some collusive decrees
obtained behind their back, which did not bind them. The
plaintiffs sought relief of partition and separate
possession of their 1/4 t h share in suit schedule properties.
The cause of action stated therein was their demand for
partition of their separate shares, which was refused by
their defendants.
9. It was further submitted that in the said suit,
plaintiff Nos. 2, 4 and 5 filed a memo dated 19.09.2000
stating that they do not have any right and interest in the
suit properties and sought for dismissal of suit insofar as
plaintiff Nos. 2, 4 and 5. The suit ended in compromise.
10. Thereafter the present suit is filed by Smt.
Siddavva seeking for partition and separate possession of
her 1/9 t h share in schedule properties namely,
SCHEDULE -A
(1) Residential house bearing No.124 and 124/A
situated at Gopakanakoppa, Hubli which is bounded
as under:
To the East : Road
To the West : property of
Dharmagouda K. Patil
and Ujjanagouda
K. Patil
To the North : Road
To the South : Road
(2) Land bearing R.S.No.51/1 measuring 7 Acres
14 Guntas situated at Gopankoppa, Hubli which is
bounded as under:
To the East : Stream
To the West : Road
To the North : R.S.No.52
To the South : R.S.No.50
SCHEDULE -B
(1) Land bearing R.S.No.417/3 measuring 4 Acres
situated at Saunshi village, Tq: Kundgol, which is
bounded as under:
To the East : R.S.No.417/2
To the West : R.S.No.399
To the North : R.S.No.417/4
To the South : R.S.No.417/2
(2) Land bearing R.S.No.417/4, measuring 4 Acres
situated at Saunshi village, Tq: Kundgol, which is
bounded as under:
To the East : R.S.No.417/1
To the West : R.S.No.399
To the North : R.S.No.416
To the South : R.S.No.417/3
In the plaint, plaintiff stated that suit schedule -A
and schedule -B were joint family properties. It was
stated that plaintiff had 1/9 t h share in joint family
properties and despite her demand, she was not given her
share constraining her to file suit for partition.
11. From the above, it was submitted that Smt.
Siddavva who is seeking for partition had already sought
partition in O.S.No.209/2000, ought to have included all
joint family properties in the said suit. Omission to
include all her claims in earlier suit amounted to
abandonment of her claim, as it was not with leave of
Court, hence present suit was barred under Order II Rule
2 of CPC.
12. It was further contended that, apart from her
omission to sue in respect of all joint family properties in
prior suit, plaintiff relinquished her right, by filing a
memo, which attracted application of provisions of Order
II Rule 2 of CPC. Hence instant suit was not maintainable.
In support of his contentions, learned counsel for
appellants relied upon decision of Hon'ble Supreme Court
in Shankar Sitaram Sontakke and another Vs.
Balakrishna Sitaram Sontakke and Others reported in
AIR 1954 SC 352 and a decision of learned Single Judge
of Allahabad High Court in Smt. Shukla verma Vs. Prem
Shankar and others reported in 1976 AIILJ 652.
13. On the other hand, learned counsel Sri. Dinesh
M. Kulkarni appearing for respondents submitted that the
suit schedule properties in earlier suit and instant suit are
not one and the same. The cause of action for earlier suit
differs with that of present case. Even parties in earlier
suit were not same as in present suit. The earlier suit was
filed seeking for partition of her share in the joint family
properties against her father's brothers, whereas instant
suit is with regard to her share in joint family properties
of her father Manakanagouda. Learned counsel relied upon
the decision in the case of Bapusaheb Chimasaheb
Naik-Nimbalkar (Dead through legal representatives)
and another V/s. Mahesh Vijaysinha Rajebhosale and
others, reported in (2017) 7 SCC 769, to contend that
instant case did not attract Order II Rule 1, 2 and 3 of
CPC.
Learned counsel further relied upon decision of
Hon'ble Supreme Court in the case of Vishwanath Achari
Vs. Kanakabashapaty reported in AIR 2005 SCW 3588,
to contend that appellate Court, even though empowered
to frame issue other than those framed and considered by
trial Court, it is required by Section 107 of CPC to remit
the additional issue for trial.
14. Heard learned counsel for both parties and
perused impugned judgment and record.
15. From the above, it is not in dispute that plaintiff
Siddavva in this case had earlier filed O.S.No.209/2000 as
plaintiff No.5 and relief sought therein was also for
partition of joint family properties. The subject matter of
said suit did not include suit schedule properties in the
present suit. The parties therein also included uncles of
plaintiff i.e., brothers of the propositus in this case
namely Manakanagouda Patil. The plaintiff in the said suit
filed a memo relinquishing her rights. The suit ended in a
compromise decree. The points required to be decided in
this appeal is whether above facts attract application of
provisions of Order II of CPC, which reads as follows:
"Order II Rule 1. Frame of suit.- 1.
Frame of suit. - Every suit shall as far
as practicable be framed so as to
afford ground for final decision upon
the subjects in dispute and to prevent
further litigation concerning them.
2. Suit to include the whole claim. -
(1) Every suit shall include the whole
of the claim which the plaintiff is
entitled to make in respect of the
cause of action; but a plaintiff may
relinquish any portion of his claim in
order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of
claim.-Where a plaintiff omits to sue
in respect of, or intentionally
relinquishes, any portion of his claim
he shall not afterwards sue in respect
of the portion so omitted or
relinquished.
(3) Omission to sue for one of
several reliefs.-A person entitled to
more than one relief in respect of the
same cause of action may sue for all or
any of such reliefs; but if he omits,
except with the leave of the Court, to
sue for all such reliefs, he shall not
afterwards sue for any relief so
omitted.
Explanation.-For the purposes of this
rule an obligation and a collateral
security for its performance and
successive claims arising under the
same obligation shall be deemed
respectively to constitute but one
cause of action.
3. Joinder of causes of action. - (1)
Save as otherwise provided, a plaintiff
may unite in the same suit several
causes of action against the same
defendant, or the same defendants
jointly; and any plaintiffs having
causes of action in which they are
jointly interested against the same
defendant or the same defendants
jointly may unite such causes of action
in the same suit.
(2) Where causes of action are united,
the jurisdiction of the Court as regards
the suit shall depend on the amount or
value of the aggregate subject-matters
at the date of instituting the suit.
16. The Hon'ble Supreme Court in its decision N.V.
Shrinivasa Murthy vs. Mariyamma reported in AIR
2005 SC 2897 has held that in order to attract bar of
Order II Rule 2, earlier suit should be founded on same
cause of action on which subsequent suit is based and if
in earlier suit, plaintiff omitted to sue in respect of or
intentionally relinquished any portion of his claim, he will
not subsequently entitled to sue in respect of claim so
omitted or relinquished. In Union of India vs. H.K.
Dhruv reported in 2005 (10) SCC 218, it is further held
that the earlier suit should have been disposed of on
merits. The basic idea behind these provisions is that a
defendant should not be vexed twice for same cause of
action.
17. In this case, it is not in dispute that parties in
this suit were also parties in earlier suit. The relief sought
in both the suits is partition. In Shankar Sitaram
Sontakke's case supra relied upon by counsel for
appellant, Hon'ble Supreme Court held that cause of
action in suit for partition is the desire of plaintiff to
separate from his brothers and to divide joint family
properties. The same principle is evolved in Smt. Shukla
Verma's case also. Learned counsel for respondents on
other hand relied upon decision in Bapu Saheb (Supra)
wherein it is held that provisions of Order II Rule 2 would
not apply if cause of action of previous suit and
subsequent suit are different. It is also held there in that
cause of action for suit for partition of joint family
properties is a continuing cause of action. But on a careful
examination of facts in Bapu Saheb's case it is seen that
cause of action in previous suit was based on a document
whereas subsequent suit for partition was filed on basis of
a claim arising on death of an ancestor and therefore it
was held that cause of action in two suits were materially
different and as cause of action for partition was a
continuing cause of action, it was held that bar under
Order II Rule 2 would not be attracted and hence, period
of limitation prescribed under Article 65 would not apply.
Learned counsel also relied upon decision in Vishwanatha
Achari's case (Supra) to contend that said objection was
not raised before trail Court and no issue framed and
decided. It was submitted that provision of Section 107 of
CPC, under such circumstances, mandated a remand to
trial Court in order to give defendant opportunity to
evidence on said issue. Therefore, points that arise for
consideration in this appeal are:
1.Whether the instant case is hit by Order II
Rule 2 of CPC even when subject matter of
the subsequent suit for partition was
different and not included in the previous
suit for partition?
2.Whether additional issue can be raised and
considered by appellate Court under Section
107 of CPC without remanding matter to trial
Court?
3.Whether the judgment and decree passed by
the trial Court is perverse or suffers from
material irregularity or whether there is
miscarriage of justice calling for interference
by this Court?
18. From perusal of plaint in O.S.No.209/2000
Ex.P.17, and plaint in this case, it is indeed seen that
relief sought in both is for partition and separate
possession of plaintiff's share in joint family property.
Though previous suit had some more parties in addition to
all parties to present suit and though previous suit did not
include present suit properties, as per decision in Shankar
Sitaram Sontakke's case cause of action in a suit for
partition is desire of plaintiff to separate from joint
family. Therefore, it has to be held that cause of action in
previous suit and present in this case are one and same.
19. The fact that the suit schedule properties in this
suit were not included would not make any difference as
provisions of Order II Rule 2 would be attracted, even
where plaintiff omits to sue in respect of or intentionally
relinquishes any portion of his claim and he would
thereafterwards be barred from suing in respect of portion
so omitted or relinquished.
20. Even the fact that in the prior case plaintiff had
sought partition and separate possession of her share in
the joint family properties, against her brother and uncles
would also not make any difference as her intention was
to have her share in joint family property separated and
given to her. Omission to include all joint family
properties in previous suit is totally unexplained. There is
not even a semblance of a plea that such omission was
with leave of Court as mandated under Rule 3 of Order II.
Moreover defendants also produced Ex.D1, memo
dated 19.09.2000 to which plaintiff in this suit was also a
signatory wherein she has given up her right in respect of
joint family properties and consented for compromise of
said suit. The provisions of Order II Rule 1 and 2 require
plaintiff to agitate all claims arising out of cause of action
in same suit. Any omission except with leave of Court is
deemed to have been relinquished and bars to sue in
respect of same, subsequently. Though learned counsel
for respondents strenuously argued that contents of
Ex.D1, memo mentions that relinquishment is confined to
subject matter in the said suit, by virtue of presumption
mentioned above, relinquishment has to be held to be
enlarged with regard to entire claim based on same cause
of action. On this count also the bar under Order II Rule 2
would apply.
are answered in affirmative and in favour of appellants.
22. For answering point No.2, brief reference to
Section 107 of CPC is necessary. It reads as under:
"Section 107 : (1) Subject to such
conditions and limitations as may be
prescribed, an Appellate Court shall have
power -
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them
for trial;
(d) to take additional evidence or to
require such evidence to be taken.
(2) Subject as aforesaid, the Appellate
Court shall have the same powers and shall
perform as nearly as may be the same
duties as are conferred and imposed by
this Code on Courts of original jurisdiction
in respect of suits instituted therein."
Sub-Section (1) (c) of Section 107 states that
appellate Court has power to frame issues and refer them
for trial. At the same time sub-Section (1)(a), empowers
appellate Court to determine a case finally. Though
learned counsel for respondents relied upon decision in
Vishwanatha Achari's case, in support of his proposition of
law that where appellate Court finds framing of an
additional issue is necessary for proper disposal of suit, it
may do so but on framing additional issue remand it for
trial. But in the absence of any denial of the foundational
facts attracting provisions of Order II Rule 2, and parties
placing plaint in prior suit on record, there is little scope
for any evidence being led by parties with regard to the
issue. The evidence already on record is sufficient to
decide the additional issue also as per provisions of Order
41 Rule 24 of CPC. The Hon'ble Supreme Court in the case
of Ashwinkumar K. Patel Vs. Upendra J. Patel and
others reported in AIR 1999 SC 1125, has held that
where there is sufficient evidence on record to decide the
additional issue framed by appellate Court, it can decide it
without remanding matter for trial. Thus, it is held that
the provisions of Section 107 of CPC do not mandatorily
require remand if appellate Court frames additional issue,
which was not framed and decided by trial Court, if
additional evidence is not required and evidence already
on record is adequate to decide the same. Point No.2 is
accordingly answered in the affirmative and in favour of
appellants.
23. In the result, appeal is allowed, impugned
judgment and decree passed by trial Court is set aside
and suit in O.S.No.317/2011 is dismissed.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
CLK/BVK
